National Insurance Company Limited v Sivaprasad M.V. & Suresh Kumar P.K., MACA No.1614 of 2020; CO No.11 of 2021

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## `MACA NO. 1614 OF 2020` ``` [AGAINST THE AWARD DATED 18.10.2019 IN OP(MV)NO.303/2018 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALIPARAMBA] ``` ## `APPELLANT/2ND RESPONDENT IN OP(MV)NO.303/18:` ``` NATIONAL INSURANCE COMPANY LIMITED, PAVIZHAM ASSOCIATES, PAYYANNUR, PAYYANNUR P.O, KANNUR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM - 682 016. ``` ``` BY ADV LAL GEORGE SRI.SEBASTIAN VARGHESE ``` ## `RESPONDENTS/PETITIONER/1ST RESPONDENT IN OP(MV)NO.303/2018:` ``` 1SIVAPRASAD M.V., AGED 34 YEARS S/O. K.M KRISHNAN, KIZHAKKE MADATHIL, KADANNAPALLI, KANDONTHAR AMSOM, P.O PARIYARAM MEDICAL COLLEGE, KANNUR DISTRICT 670 503. 2SURESH KUMAR P.K, AGED 46 YEARS, S/O. KANNAN NAIR K, NANDANAM, PURAKKUNNU ROAD, MATHIL, ARAVANCHAL P.O, KANNUR DISTRICT 670 307. ``` ``` BY ADV SMT.M.R.JAYALATHA ``` ``` THIS MACA HAVING COME UP FOR ADMISSION ON 09.03.2023, ALONG WITH CO.11/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` ``` -2- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ``` CO NO. 11 OF 2021 ``` ``` [AGAINST THE AWARD DATED 18.10.2019 IN OP(MV)NO.303/2018 ON THE FILES OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ``` ## `THALIPARAMBA]` ## `CROSS OBJECTOR/ 1ST RESPONDENT/PETITIONER` ``` SIVAPRASAD M.V, AGED 34 YEARS, S/O. K.M.KRISHNAN, KIZHAKKE MADATHIL, KADANNAPPALLI, KANDONTHAR AMSOM, P.O.PARIYARAM MEDICAL COLLEGE, KANNUR DISTRICT, PIN-670503. BY ADV M.R.JAYALATHA ``` ## `RESPONDENTS/APPELLANT AND 2ND RESPONDENT/1ST & 2ND` ## `RESPONDENTS IN OP(MV)NO.303/2018:` - `1 NATIONAL INSURANCE COMPANY LIMITED, PAVIZHAM ASSOCIATES, PAYYANNUR, PAYYANNUR P.O., KANNUR, REP. BY ITS BRANCH MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM DISTRICT, PIN-682 016.` - `2 SURESH KUMAR P.K., AGED 46 YEARS, S/O. KANNAN NAIR K., NANDANAM, PURAKKUNNU ROAD, MATHIL, ARAVANCHAL P.O., KANNUR DISTRICT, PIN-670307.` ``` BY ADV SRI.LAL GEORGE SRI.SEBASTIAN VARGHESE,SC ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2023, ALONG WITH MACA.1614/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` ``` -3- ``` ## `JUDGMENT` ## `[MACA No.1614/2020, C.O.No.11/2021]` ``` This Appeal and Cross Objection are impelled ``` ``` against the Award of the Motor Accidents Claims ``` ``` Tribunal, Thaliparamba (‘Tribunal’, for short) in OP(MV)No.303/2018. ``` ``` 2.The afore Original Petition was filed by ``` ``` the Cross Objector - Sri.Sivaprasad M.V., ``` ``` asserting that he was involved in a road ``` ``` accident on 22.03.2018 - when he was driving a ``` ``` motorbike, being hit by the offending vehicle ``` ``` driven in a rash and negligent manner - and seeking compensation of Rs.10,00,000/-; but ``` ``` which has been allowed only to the extent of ``` ``` Rs.7,00,133/-. He assails the Award as being inadequate, particularly because it has reckoned his notional income as only Rs.18,000/- per month. ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` ``` -4- ``` ``` 3.While so, the appellant – National Insurance Company Limited (‘Insurance Company’, for short) in the afore Appeal, impugns the same Award, alleging that the compensation awarded by the Tribunal is excessive and seeking that it be reduced. ``` ``` 4.I have heard Sri.Sebastian Varghese – ``` ``` learned counsel for the Insurance Company and Smt.M.R.Jayalatha – learned counsel appearing for the Cross Objector. ``` ``` 5.I have considered the rival submissions, on the touchstone of the evidence on record – ``` ``` copies of which have been handed over across the ``` ``` Bar by the learned counsel for the parties with ``` ``` the express consent that it can be acted upon by this Court without dispute. ``` ``` 6.The facts are not in dispute, including ``` ``` the causation of the accident and the injury ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` ``` -5- ``` ``` sustained by the Cross Objector. ``` ``` 7.The learned Tribunal has adopted ``` ``` Rs.18,000/- as the notional income of the Cross Objector, relying upon Ext.X2 – a copy of the ``` ``` Acquittance Register maintained by the Malabar ``` ``` Devaswom Board, in which he was working as a ``` ``` ”Kazhakam”. His income in the said register has ``` ``` been recorded to be Rs.16,160/- in March 2018; ``` ``` and the learned Tribunal added another ``` ``` Rs.1,840/- to it, based on the evidence of PW2 – ``` ``` Executive Officer of the Temple, who said that ``` ``` every employee gets a percentile of the ``` ``` offerings made by the worshipers, which is an ``` ``` average of Rs.4,000/-. It thus took the notional ``` ``` income of the Cross Objector to be Rs.18,000/-. ``` ``` 8.Smt.M.R.Jayalatha – learned counsel for the Cross Objector, pleaded that the afore ``` ``` amount of Rs.18,000/- be enhanced to at least ``` ``` Rs.20,000/-, taking note of the evidence of PW2; ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [22 x 9] intentionally omitted <==** ``` while Sri.Sebastian Varghese – learned counsel for the Insurance Company, argued that not more than Rs.16,160/- could have been taken even ``` ``` going by Ext.X2. ``` ``` 9.I have examined Ext.X2 – which, as said ``` ``` above, is the Acquittance Register maintained by ``` ``` the Malabar Devaswom Board; and it is undisputed ``` ``` that the income of the Cross Objector shown ``` ``` therein is Rs.16,160/-. Therefore, the only ``` ``` question is whether any further amount ought to ``` ``` have been added to this; and in this regard, ``` ``` when one evaluates the evidence of PW2 – the ``` ``` Executive Officer, I cannot find error in the ``` ``` conclusion of the Tribunal, that some amount out ``` ``` of Rs.4,000/-, mentioned by him as being the ``` ``` average quantum received by an employee every month from the offerings, is to be added. ``` **==> picture [377 x 12] intentionally omitted <==** ``` record, particularly Ext.A2 - Wound Certificate ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [22 x 8] intentionally omitted <==** ``` and Ext.A4 series - Discharge Summaries, ``` ``` establish that the Cross Objector suffered the following injuries: ``` - `“(1)Comminuted fracture of right tibia.` - `(2) Fracture of right hand middle finger.` - `(3) Lacerated injuries on the right knee.` - `(4) Lacerated injury on the right great toe.` - `(5) Tenderness and swelling over the right hand.”` `11. Further, Ext.X1 – Disability Certificate` ``` records the Cross Objector’s whole-body disability to be 10%. This has been accepted by ``` ``` the Tribunal also, but the question arises ``` ``` whether any future prospects ought to be added to this. For this purpose, it must be kept in mind that the Cross Objector is working as a “Kazhakam” in a temple, which requires him to be ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [22 x 9] intentionally omitted <==** ``` on his feet for substantial periods of time. The disability found is with respect to his limbs; and I, therefore, think that future prospects of ``` ``` 10% must be added to his notional income. This ``` ``` is also being guided by the judgment of the Hon’ble Supreme Court inNational Insurance Company Ltd. v. Pranay Sethi[2017 (4) KLT 662 ``` ``` (SC)] andSatheeshE.v.New India Assurance ``` ``` Company Ltd. and Others [(2022) SCC OnLine ``` ``` 1828] ``` ``` 12.That being so said, the Insurance ``` ``` Company has a specific case that not more than ‘9’ could have been adopted as the multiplier, ``` ``` because the Cross Objector would have retired only at the age of 56, from his permanent ``` ``` employment. There is great force in this ``` ``` submission, since the Cross Objector was only 32 years old at the time of the accident, and he would have had at least 22 years of service, ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [22 x 9] intentionally omitted <==** ``` even going by the rules applicable to the Malabar Devaswom Board as of now. I, therefore, propose to revise the multiplier, to be adopted for the purpose of computation of permanent disability, to be ‘9’ as perSarla Verma & Others v. Delhi Transport Corporation & Another ``` ``` [2010 (2) KLT 802]. ``` ``` 13.However, withrespecttothe compensationunder the heads “Pain and ``` ``` Suffering” and “Loss of Amenities”, in view of the injuries that I have noticed above and the ``` ``` trauma that the Cross Objector had to undergo on account of long ‘inpatient’ treatment - which is established to be 32 days under two spells as ``` ``` per Ext.A4 - series of Discharge Summaries, and the further physiotherapy for 32 days, as proved through Ext.A6 - I am certain that he should be given a marginal increase under both these heads. I, therefore, propose compensation under ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [30 x 9] intentionally omitted <==** ``` the heads “Pain and Suffering” and “Loss of Amenities” to be Rs.55,000/- and Rs.35,000/- respectively, from Rs.40,000/- and 20,000/- now awarded. ``` ``` In the afore circumstances, this Appeal and Cross Objection are disposed of in the following manner: ``` ``` (a)The compensationfor permanent disability to the Cross Objector is reduced to Rs.2,13,840/- (Rupees two lakhs thirteen thousand eight hundred and forty only), from Rs.3,45,600/-, reckoning his notional income to be Rs.18,000/- per month, with 10% future prospects added to it; and adopting the multiplier of nine, with the percentile of disability being maintained as 10%, as correctly found by the Tribunal based on Ext.X1. (b)The compensation under the head “Pain and Suffering” is enhanced to Rs.55,000/- ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` **==> picture [30 x 8] intentionally omitted <==** ``` (Rupeesfifty five thousand only), from ``` ``` Rs.40,000/- as granted by the Tribunal. ``` **==> picture [36 x 49] intentionally omitted <==** ``` (c)The compensation under the head “Loss of ``` ``` Amenities” is enhanced to Rs.35,000/- (Rupees ``` ``` thirty five thousand only), from Rs.20,000/- as ``` ``` granted by the Tribunal. ``` ``` (d) In all other heads, the compensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, the Cross Objector will be ``` ``` at full liberty to recover the compensation, as ``` ``` modified by this Court, from the Insurance ``` ``` Company, along with interest at the rate of 9%, ``` ``` as awarded by the Tribunal, from the date of ``` ``` claim until it is recovered.He will also be ``` ``` entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` MACA NO.1614/2020 & C.O.No.11/2021 ``` ``` -12- Company before the Tribunal, within a period of two months from the date of receipt of a copy this judgment. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```